DUE PROCESS IN THE CONTEXT OF COUNTER-TERRORISM “A CASE STUDY FROM IRAQ”

Main Article Content

BASSIM JAMEEL HUSAIN ALMUSAWI

Abstract

This article provides a critical assessment of the current Iraqi criminal justice process, in counter-terrorism context to give an answer to the question of whether the approach of Iraqi legislator in criminal proceedings meets requirements of security in confrontation against terrorist and international law of human rights. The paper reveals that, there are many welcome procedures on the safeguard of rights and liberties to strike a right balance between providing due process and securing security of citizens while fighting terrorism. However, the problem is the difficulties faced by the state in its endeavor to secure national security against one of the most serious terrorist crimes. What follow is that it may be difficult for security authorities during dealing with these crimes to cope with or realize the wide standards of procedural safeguards and human rights for persons whom may be subjected to criminal investigations. This paper proposes that it may be well to enact new legal provisions or special Act that can expressly provide police with wide-ranging powers so as to arrive the correct strategy in the criminal confrontation against terrorism in the light of international standards. The study adopts qualitative research methods of a doctrinal nature by the analytical method of texts and legal regulations as well as the comparative method is useful to have some lessons from different attitudes by comparing the different legislations of some countries in dealing with the subject.

Article Details

Section
Criminal Law
Author Biography

BASSIM JAMEEL HUSAIN ALMUSAWI

  1. Bassim jameel husain almusawi

WasitUnivesrsity/ College of Law

References

In recent years, the United Nations agencies has been continually involved in assisting Iraq and all states that are ruined from terrorism encouraging international community to combating terrorist financing through freezing the assets of terrorists, detecting and hindering the sources of funding. The UN also continues in denying terrorists access to the global business system, protecting valid institutions from being harmed by terrorists group, and stopping use alternative financial networks from terrorist and preventing the movement of assets through them. As reported by the United Nation:

"We have had a long-standing partnership with Iraq since 2014 on responding to emerging terrorism financing threats and increasing the number of AML/CFT prosecutions and convictions in the country. With the aim of enhancing internal coordination and increasing the number of AML/CFT prosecutions and convictions, we have been supporting the newly established independent Iraqi Financial Intelligence Unit through capacity building initiatives, strengthening its cooperation with its regional and international counterparts and supporting its efforts to join EGMONT Group". Reliable reports indicated that "since September 11, 2001, 209 of the 212 countries and jurisdictions in the world have expressed their support for the financial war on terror; 173 countries have issued orders to freeze the assets of terrorists; terror networks have lost access to nearly $200 million, which have been frozen or seized in more than 1,400 terrorist-related accounts around the world; of that total, over $73 million has been seized or frozen due to the efforts of the United States. Over 100 countries have introduced new terrorist-related legislation, and 84 countries have established Financial Intelligence Units. In the September 6, 2003, political decision of European Union Foreign Ministers to designate the leadership and institutions of HAMAS as a terrorist organization and to freeze their financial assets. Since September 28, 2001, all 191 UN Member States have submitted first-round reports to the United Nations Security Council Counterterrorism Committee on actions they have taken to suppress international terrorism, including blocking terrorist finances, as required under United Nations Security Council Resolution 1373".

Official website of United Nations, Office on drags and Crimes, combating terrorist financing, <https://www.unodc.org/unodc/en/terrorism/expertise/combating-terrorist-financing.html>&

<https://georgewbush-whitehouse.archives.gov/infocus/iraq/> at 14/1/2023.

Joan Fitzpatrick, (2003)"Speaking Law to Power: The War against Terrorism and Human Rights"(April/2003) Volume 14/Issue 2, European Journal of International Law/ Eur J Int Law 14 (2): 241.

It is worth highlighting that, in the course of a strong struggling against terrorist acts it is of the most significant to pass new anti-terrorist legislations for providing the authorities with extensive special powers specific to instances of terrorism so that they are able to curb those dangerous acts. That is to say, the situation under Iraq legal system is contrary to such view and this is due to there are no special rules against terrorists in the area of criminal proceedings.

In the opinion of some scholars, it is truly that the principle of procedural equality has been compromised in the field of terrorism over the past few years, due to the crucial role played by the police, investigative authority and the prosecution in these proceedings. It has been seen daily practice that breaching human rights norm as well as restrictions on the rights of persons who are facing these criminal procedures in addition to the possibility of remaining in solitary confinement, which gives the government the upper hand in the fight against this type of crimes. Juan-Luis Gómez Colomer, (2013) "the Right to A Defence in the Criminal Procedure of the Young Spanish Democracy" Volume2, Lex ET Scientia International Journal LESIJ NO. XX, VOL. 2/2013, p. 127.

Some scholars noted that ''Counter-terrorism measures have incurred excessive human rights costs, spurring radicalisation. State agents who abduct torture or illegally assassinate terrorists are scarcely ever held accountable; impunity reigns. Some states use ‘drones’ to kill terrorists seemingly outside the accepted parameters of international law on the use of force, armed conflict, and human rights. In a legal and moral universe of this kind promoted by states, contentious terrorists are unlikely not to reciprocate the spiral of violence, or be socialised into behaving better''. Ben Saul, 2015 "Old and New Terrorist Threats: What Form Will They Take and How Will States Respond?" Sydney Law School, Legal Studies Research Paper No. 15/82, September, p. 3 at: <<http://ssrn.com/abstract=2663846>> accessed 5 June 2019.

For instance the Organization African Union (OAU) mentions that: "Nothing in this Convention shall be interpreted as derogating from the general principles of international law, in particular the principles of international humanitarian law" The African Union Convention on the Prevention and Combating of Terrorism, Articles 22 date of adoption 1/7/1999 & date of entry into force 6/12/2002; see also UN Security Council Resolution 1373.

Amnesty International, in October 2001, reported the concerns that "in the name of fighting international terrorism, governments have rushed to introduce draconian new measures that threaten the human rights of their own citizens, immigrants and refugees ... Governments have a duty to ensure the safety of their citizens, but measures taken must not undermine fundamental human rights ... Common features of the new anti-terror laws include broad or vague definitions of new offences, wide powers of detention without trial, prolonged incommunicado detention (which is known to facilitate torture), intrusions into privacy, and measures which effectively deny or restrict access to asylum or speeds up deportation". See Cephas Lumina, ( 2007) "Counter-terrorism legislation and the protection of human rights: A survey of selected international practice" African Human Rights Law Journal, Afr. Hum. Rts. L.J. 35 2007, p. 37.

As example, the government of Zambia in its responding to the UN Counter-Terrorism committee on 19 June 2002, stated that "it has a number of provisions under its Penal Code (Cap 87 of the Laws of Zambia) that can be used to fight against terrorism in accordance with Security Council Resolution 1373". See Cephas Lumina, op. cit., p. 43.

See United Nations General Assembly resolution 48/122 (1993); Security Council resolution 1377 (2001); The Secretary-General of the United Nations, document 2005 / A / 59, para. 94.

Stock, Jürgen Stock & Annette L. Herz, 2010 "International Terrorism – German Police Perspective: The Current Threat Environment and Counterstrategies from the German Police Perspective" Marianne Wade and AlmirMaljevi Marianne (eds), A War on Terror (Springer Science+BusinessMidea), p. 48.

It has been stated that “The preliminary investigative documents shall be submitted to the competent judge in a period not to exceed twenty-four hours from the time of the arrest of the accused, which may be extended only once and for the same period”. The Iraqi Permanent Constitution 2005, Articles (15) (13 para. 9), Art. 19(13).

Art. 9(3) of the ICCPR and Art. 5(3) of the ECHR: "expressly guarantee the right of any person who is arrested or detained to be brought ‘promptly’ before a judge or other officer authorized by law to exercise judicial power".

McLawrence v Jamaica UN Human Rights Committee Communication No (702/1996) 18 July 1997 para 5.6; T.W. v Malta App no 25644/94 (ECtHR, 29 April 1999), (2000) 29 EHRR 185 para. 43; see also Human Rights Committee, General Comment No. 8, (Sixteenth session, 1982) “Right to Liberty and Security of Persons: (Article 9)” adopted on 30/06/1982, para. 2.

s. 41, s. 42 of the Police and Criminal Evidence Act 1984 (PACE).

Schedule 8 of the Terrorism Act 2000, as amended by s 23 of the Terrorism Act 2006.

The law states that “at the time an Iraqi law enforcement officer arrests any person, the officer shall inform that person of his or her right […] to consult an attorney” Coalition Provisional Authority’s (CPA) Memorandum 3, signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003; The Iraqi Code of Criminal Procedure also states that “Before questioning the accused the investigative judge must inform the accused that: […] he or she has the right to be represented by an attorney, and if he or she is not able to afford representation, the court will provide an attorney at no expense to the accused” Article 123 of the Iraqi Code of Criminal Procedure (ICCP (in the official English translation that is available online at the homepage of the Global Justice Project: Iraq (GJPI) <<http://gjpi.org/central-activities/judicial-independence/>> accessed 28 January 2014; see also BassimJameelAlmusawi, (2022) "Legal response to protection of right to communicate & appropriate adults during process of arrest or detention" Volume 19, No 2, Brazilian Journal of International law /BJIL, 19/2022, p. 314.

Art. 125 and Art. 126 of Iraqi Code of Criminal Procedure.

In this context, Iraqi Criminal Procedure Code in Art. 126, paragraph (b), states that: "The accused shall not swear oath unless he is in the place of testimony against other defendant".

Iraqi Code of Criminal Procedure, Art. 218, as amended by Memorandum of the Coalition Authority No. (3) s V, June 2003, Iraqi Gazette No. 3978 August 2003.

It has been stated that: "Before questioning the accused the investigative judge must inform the accused that: (…) he or she has the right to remain silent and no adverse inference may be drawn from the accused’s decision to exercise that right". Iraqi Code of Criminal Procedure, Art. 123 (B).

Weh v Austria (2005) 40 E.H.R.R. 37 at [47]; Andrew Ashworth, (2007) "Human rights: Article 6(1) - privilege against self-incrimination" Criminal Law Review, 899.

For example in English law and Northern Ireland, as Cheney et al claim that "the suspect is not forced to speak, but the court, whenever it appears proper, can draw adverse inferences from the suspect’s failure to answer questions put to him in some circumstances". For detail, see Deborah Cheney et al., (1999) Criminal Justice and the Human Rights Act 1998: Jordan Publishing Bristol, p61; Susan Easton, (1988) The Case for the Right to Silence: Ashgate Publishing Company, 2nd ed., 13.

John Murray v United Kingdom(1996) 22 E.H.R.R. 29

Art. 127 of the Code of Criminal Procedure states that "unlawful means may not be used to influence the accused in order to obtain recognition as abuse, threat of abuse, inducement, promise, intimidation, psychological influence, use of drugs, alcohol or drugs". During daily practice, criminal courts confirmed through many cases that a admissibility of confession would be unfair in event the confession is taken place by the accused front the investigator with a denial of due process particularly in case the confession is not recorded nor confirmed by juicily authority after transferring the accused front the magistrate court. However, a admissibility of confession is fair in case the confession is submitted to the investigator who has insufficient time to bring the accused before the examining magistrate to record the confessions. In details see D. Fakhri Al-Hadithi, (2015) Explanation of the Code of Criminal Procedure, Al-Sanhoury Library, Beirut, p. 444.

Ali Delf, (2016) the Legal Value of Confiscated Confession, Sinhoury Library, Beirut, p. 89. the Iraqi Code of Criminal Procedure, Article 93 states that "it is not permissible to use force against the accused upon his arrest".

In one of its verdict Federal Court of Cassation in Iraq mentioned that: No valid judicial ruling can be based on questionable or unreliable confessions made by the accused under duress and alleged torture, which are supported by appropriate medical reports and by medical experts whose statements confirmed these violations against him. Decision of Iraqi Federal Court of Cassation / Public Authority No. 96 / Public Authority 2007 on 31/10/2007.

Dan Stigall, 2007 "Comparative Law and State-Building: The "Organic Minimalist" Approach to Legal Reconstruction" 29 Loy. L.A. Int'l & Comp. L. Rev. 1 2007, p. 32.

As Williamson states that "the Coalition Provisional Authority (CPA) reforms gave greater protections to detained Iraqis than those to which English and French citizens are entitled" John C. Williamson, Establishing Rule of Law in Post-War Iraq: Rebuilding the Justice System, (2004) 33 GA. J. INT'L & COMP. L. at 239.

Art. (123) of the Iraqi Code of Criminal Procedure and articles; Arts. (15) (13 paragraph 9) of the Iraqi Constitution of 2005.

The annual reports of the Department of Prisons and Detainees of the Ministry of Human Rights starting from the establishment of the ministry under the order of the Coalition Provisional Authority (dissolved) No. 60 of 2004 until its abolition in 2015. The report of the High Commission for Human Rights in Iraq, report on the reality of torture in prisons and detention centers, (Baghdad, 2015) Also consider the statistics recorded by the Human Rights Division of the Supreme Judicial Council / Head of the Public Prosecution / Federal Judiciary <<http://www.iraqja.iq/view.2255>> accessed 11August 2016.

The Human Rights Office of the United Nations Assistance Mission for Iraq (UNAMI), Human Rights Reports (Baghdad, 2005-2013); see also The Annual Reports of the Iraqi High Commission of Human rights & Iraqi Ministry of Human Rights, the Conditions of Prisons and Detention Centres, Human Rights Reports (Baghdad, 2007-2019).

The Human Rights Office of the United Nations Assistance Mission for Iraq (UNAMI), Human Rights Report (Baghdad, 2010) 23; the Human Rights Office of the United Nations Assistance Mission for Iraq (UNAMI), Human Rights Report (Baghdad, 2012-2019) 12, 13; see also Amnesty International, New Order Same Abuses: Unlawful Detentions and Torture in Iraq, op. cit., pp. 18-29.

The Annual Reports of the High Commission of Human Rights 2018 & Iraqi Ministry of Human Rights, the Conditions of Prisons and Detention Centres, Human Rights Report (Baghdad, 2010) 77.

Art. 19(11) of the Iraqi Permanent Constitution. The official translation in English is available online at the homepage of the Iraqi government at <<http://www.cabinet.iq/default.aspx>> accessed 20 November 2013.

The Annual Report of the High Commission of Human Rights 2018 & the Iraqi Ministry of Human Rights, The Conditions of Prisons and Detention Centres, Human Rights Report (Baghdad, 2012) 68, 73. Human Rights Office of the United Nations Assistance Mission for Iraq (UNAMI), Human Rights Report (Baghdad, June 2013) 14.

Also, the Iraqi Permanent Constitution states that “the court shall appoint a lawyer at the expense of the state for an accused of a felony or misdemeanour who does not have a defence lawyer” The Iraqi Permanent Constitution 2005 Art. 19(4).

Human Rights Office of the United Nations Assistance Mission for Iraq (UNAMI) , op. cit., para. 14.

ICCP Art.127 prohibits “the use of any illegal method to influence the accused to extract a confession such as mistreatment, threats, injury, enticement, promises, psychological influence or use of drugs or intoxicants are considered illegal.”; also, IPC Article 333 criminalises “any public official who tortures or orders torture, or threatens torture, of a person accused of a criminal act, including witnesses, with the aim of compelling a confession”.

The Iraqi Permanent Constitution 2005, Art. 37(C).

The reports of Iraqi High Commission of Human Rights 2014-2019 & the Human Rights Office of the United Nations Assistance Mission for Iraq (UNAMI), Human Rights Report (Baghdad, June 2013) 12; The Human Rights Office of the United Nations Assistance Mission for Iraq (UNAMI), Human Rights Report: 2011 (Baghdad, May 2012)16, 18.